Federal judge strikes down Virginia ban on same-sex marriage

posted at 8:06 am on February 14, 2014 by Ed Morrissey

Not exactly a surprise, but merely a continuation of a trend. A federal district court in Virginia struck down the state’s ban on same-sex marriage, the latest in a recent string of defeats for states wishing to define marriage:

A federal judge in Norfolk struck down as unconstitutional Virginia’s ban on same-sex marriage Thursday night, saying the country has “arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”

U.S. District Judge Arenda L. Wright Allen issued a sweeping 41-page opinion that mentioned at length Virginia’s past in denying interracial marriage and quoted Abraham Lincoln. She struck the constitutional amendment Virginia voters approved in 2006 that both bans same-sex marriage and forbids recognition of such unions performed elsewhere. …

“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships,” Wright Allen wrote. “Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

If you think that’s a strange application of the word sacred, it fits with the sloppy and turgid prose in the rest of the opinion. Gabriel Malor highlighted the opening paragraph, and it should be an immediate contender for the annual Edward Bulwer-Lytton writing contest. All that was missing from this string of clichés was the dark and stormy night:

Not long after that, Gabriel also noticed that the judge references the Constitution’s clear language that “all men are created equal.” The only problem? That language doesn’t come from the Constitution — it’s in the Declaration of Independence. (He also notes that this model of judicial writing got a unanimous confirmation from the US Senate.)

Beyond the bad writing style, though, the judge seems to at least be in the consensus on the federal bench these days. This follows on the heels of another decision in Kentucky with somewhat more limited application, but using the same reasoning of the 14th Amendment and Lawrence v Texas, which I predicted nearly ten years ago would be used to overturn state definitions of marriage. So did Antonin Scalia in Lawrence and Windsor dissents, and whom Slate’s Mark Joseph Stern ridiculed earlier this week for, er, getting it right:

By now, an opinion like this is fairly predictable. It comes as a pleasant surprise, then, to see Heyburn channeling his inner Judge Robert Shelby and sticking his thumb directly in Scalia’s eye. In Scalia’s Windsor dissent, the justice decried overly broad, “deliberately transposable passages” expounding the federal Defense of Marriage Act’s unconstitutionality. “How easy it is,” Scalia snorted, “indeed how inevitable, to reach the same conclusion [as the court in Windsor] with regard to state laws denying same-sex couples marital status.” Then he illustrated for the world just how easy it would be to apply Windsor’s logic to state-level gay marriage bans, indignantly substituting a few key words:

DOMA This state law tells those couples, and all the world, that their otherwise validmarriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence

Scalia performs this haughty exercise three times in his dissent, so intent is he to declare to the world I told you so. It’s meant to be a scornful joke—but Heyburn takes it as an invitation to do the same in applying Windsor’s holding to his own state’s law.

Actually, it wasn’t meant to be a “scornful joke,” but a warning of what was to come. And Scalia predicted it very accurately, despite an avalanche of criticism at those times for his hyperbole and supposed scare-mongering.


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